Raghunath Sahai and Others vs Daroga Sahu and Others

Jwala Prasad, J.—This is an appeal against the decision of the Subordinate Judge of Gaya, dated the 26th June, 1922 refusing an application of the appellant to set aside an auction-sale under Order 21, Rule 90. The decree in execution of which the sale took place, was a mortgage-decree The preliminary decree was passed on 7th July, 1912, and was confirmed on appeal on 4th May, 1915. It was made final on 16th April, 1917, and was amended on 13th May, 1921. A petition for execution was filed on the 25th May, 1921, The amount sought to be levied was over fifteen thousand rupees. The following properties were asked to be sold:

(1) Three annas pacca share, equal to 8, annas katcha share, by partition out of 16 annas proprietary interest in mouza Tengara valued at Rs. 3,000.

(2) One anna out of two annas in the 11 annas tokhta out of 16 annas proprietary interest in mouza Sokanar, etc, valued at Rs. 200.

(3) Three annas out of 16 annas proprietary interest in mouza Pritampur, valued at Rs. 500.

(4) Two annas out of 8 annas from 16 annas permanent mukarari interest in mouza Bhaus and Kharagpur valued at Rs. 3,000.

(5) Two annas out of 4 annas from 16 annas proprietary interest in mouza Rajhara Asli and Dakli together with Chak Chakukats, Nami and Benami Tappa Kot, valued at Rs. 4,000 and

(6) Two annas out of 8 annas from 16 annas share in mouza Sikmi together with Chakukats Nami and Benami, valued at Rs. 500.

On 4th November, 1921 notice under Order 21, Rule 66 was ordered to be issued for fixing valuation. The valuation of the decree-holder was accepted by the Court by order, dated the 17th December, 1921, the objection of the judgment-debtors having been dismissed for default. The sale proclamation was ordered to be issued.

On the 6th March, 1922, Saligram, one of the judgment-debtors, filed an objection u/s 47 of C.P.C., stating that the amount covered by the decree was not due, it having been paid off by the judgment-debtors Raghunath Sahai and others executing a sale deed, dated the 29th July, 1917, whereby the decree-holders purchased the following properties of the judgment-debtors:

(1) 1 anna 6 pies of mouza Rajhara;

(2) 2 annas of mouza Sikmi;

(3) 2 annas of mouza Nagar;

(4) 2 annas of mouza Bisram;

(5) 1 anna of mouza Bhaur; and

(6) 1 anna of mouza Kharagpur,

This petition was numbered Judicial Miscellaneous Case No. 19 of 1922. On the 17 March, 1922, Dasarath Lal, judgment-debtor, also filed an objection u/s 47 of the C.P.C. stating that he had purchased the entire 8-annas share of mouza Bhaur on the 4th November, 1921, for Rs. 8,900 at an auction sale held in execution of a mortgage-decree No. 147 of 1921 passed by the Subordinate Judge, 1st Court, Gaya, in which Saligram and others were decree-holders, and Raghunath Sahai and others were judgment-debtors (mortgagors in the present case) and, therefore, he prayed that mouza Bhaur be exempted from the sale. He also supported the petition of Saligram referred to above as to the decree having been satisfied by the registered sale-deed, dated the 29th July, 1917. He further stated that both the villages Bhaur and Kharagpur were not covered by the decree. Both the aforesaid Miscellaneous Judicial Cases were disposed of on the 24th March, 1922, by Order No. 35. The Court held that the satisfaction of the decree by means of the registered sale-deed of 1917 cannot be recognised and that both Bhaur and Kharagpur were clearly covered by the decree. On that very day Dasrath Lal, judgment-debtor, then put in a petition praying that 2 annas mukarari share of Bhaur be sold last of all, inasmuch as he had purchased 8 annas mukarari share of that village in execution of the decree based upon a mortgage. Similarly, Saligram put in a petition praying that the properties Nos. 1 to 3 be sold last. The guardian ad-Item of minor judgment-debtor applied that the properties be sold in the order as given in the sale proclamation. The Court passed the following order:

Let properties Nos. 1 to 3 be sold last and village Bhaur be sold after other properties, and the petition of the guardian of the minors be rejected and let the bid sheet be sent to the Nazir for sale, and put up on 27th March, 1922, for orders.

The properties were then sold in the order indicated above. Property No. 1 was sold for Rs. 9,000 and purchased by Murlidhar; property No. 2, two annas of Kharagpur, was sold for Rs. 3,600 in the name of Dasrath Lal; property No. 5, mouza Rajahara, was sold for Rs.: 4,250 and property No. 6, mouza Sikmi, for Rs. 750. The decree was thus satisfied, and hence village Bhaur, property No. 4, and Pritampur property No. 3, were not sold.

On 22nd April, 1922, two applications were filed by the judgment-debtors; Jagat deo Prasad and others filed one objection and Raghunath Sahai, Ram Prasad Lal and Rameshwar Prasad filed another objection, for setting aside the sale under Order 21, Rule 90. These applications were numbered Miscellaneous Judicial Cases Nos. 37 and 38, respectively. They were heard together and disposed of by the order of the Court dated the 26th June, 1922.

The Subordinate Judge dismissed the applications holding that there was no material irregularity in publishing or conducting the sale and that the appellant failed to show that the properties were sold for an inadequate price or that the applicants suffered any loss or injury from the sale. The decision of the Subordinate Judge is assailed in appeal. Nothing has been urged before us to show that the finding of the Court below that the appellants failed to prove that the prices fetched were inadequate is wrong. The onus to prove this was upon the appellants. The learned Subordinate Judge says that the village papers showing realisations from the villages sold were not produced and that this would tell against the case of the appellants. They also failed to show that the Road Cess Return (Exhibit 1) was acted upon.

As to the service of the processes, the Court below has accepted the evidence offered on behalf of the respondents that the processes were duly served. There was no evidence offered by the appellants of non-service of the processes. No irregularity has also been shown in the service of the processes or in publishing the said proclamations. The main contentions have been those set forth in grounds Nos. 5 and 9 in the Memorandum of Appeal to this Court. It is said that the Court below should not have changed the order of the properties to be sold "without there being any prayer on behalf of the decree-holders," nor should lot No. 4 have been split up into two lots.

The last objection was disposed of by the Subordinate Judge on the 24th of March, 1922, in Order No. 35, wherein he held that Bhaur and Kharagpur were two villages and were distinctly recited in the decree in question. There was no appeal from that order and it become final. Moreover, the order of the Subordinate Judge is supported by the decree. This contention, therefore, fails.

As to the other contention that the Subordinate Judge should not have changed the order of the properties mentioned in the sale proclamation, the learned Subordinate Judge says:

The sale of the properties in another order than that given by the decree-holder appears to have been properly done, as it is admitted that those properties had previously been sold.

It is conceded that there was no special direction given in the decree as to the order in which the mortgaged properties were to be sold. There was no such direction in the mortgage-bond. The properties were mentioned in the decree in the order in which they happened to be mentioned in the mortgage-bond. In the absence of any such special direction the decree-holder had a right to sell the properties in the order he thought best, in order to satisfy his decree. This is settled by authorities and is conceded in ground No. 5 of the Memorandum of Appeal wherein it is said that the Subordinate Judge should not have changed the order of the properties to be sold "without there being any prayer on behalf of the decree-holder." Mr. Hassan Imam refers to the petition for execution and the sale proclamations for his contention that the decree-holder prayed for the sale of the properties in the order mentioned therein and, consequently, the properties should have been sold in that order. To this Mr. Sultan Ahmed answers by referring to the proceedings which culminated in Order 36 of the 24th March, 1922. He says that the prayer of Saligram and Dasrath Lal for the sale of properties Nos. 1, 2, 3, and village Bhaur after the sale of the other properties was not objected to by the decree-holder, rather the decree-holder accepted the directions made by the Court, and in fact he sold the properties in the order prescribed by the Court. Therefore, the decree-holder exercised his right to sell the properties in the order in, which he liked and the appellants, therefore, cannot urge that the properties were sold in that order contrary to the wishes of the decree-holder.

Mr. Hassan Imam then- contends that in determining the order in which the properties should be sold, the Court should have looked into the equities in favour of all the persons concerned in the case. Now, reference has been made to a decision of this Court reported in Jatadhari Singh v. Baldeo Lall (1919) 4 Pat. L.J. 207. That case seems to lay down that (1) the decree- holder has primarily the right to choose the order in which the properties should be sold, and (2) the Court ultimately has the right to determine the order of the properties to be sold according to the equities affecting the parties. Saligram was purchaser of properties Nos. 1 to 3 and Dasrath Lal was purchaser of Bhaur, one of the properties in lot No. 4, in execution of the decrees based on mortgages subsequent to that on the basis of which the present mortgage-decree was passed. They were parties to the present decree, being subsequent mortgagees interested in the equity of redemption. The properties 1 to 3 and Bhaur purchased by them were liable to contribute rateably to the satisfaction of the present decree. The judgment-debtors have a right to call upon them to contribute their quota of the decree-debt in proportion to the value of those properties. It is conceded that the judgment-debtors have this right, but that they should enforce it by a separate suit. The judgment-debtors would have been saved the trouble of a separate action for contribution against Saligram and Dasrath Lal if the Court had not directed the properties purchased by them to be sold last. The decree-holders in their application for execution and in the sale proclamations desired the properties to be sold in a particular order. When the properties were about to be sold Saligram and Dasrath Lal prayed for changing the order in which the properties were advertised for sale, urging that the properties in which they were interested should be sold last. The guardian ad litem of the minor judgment-debtor objected to it; the other judgment-debtors did not. The Court should have at this stage considered the equities in favour of the judgment-debtors who are now by reason of the order of the Court being driven to expensive litigation for contribution from the properties held by Saligram and Dasrath Lal. The decree-holder has not appeared before us; so (he being primarily in control of the execution sale) his intentions can be gauged only by his execution petition. In changing the order at a late stage the Court should have regard to the equities in favour of each particular party involved, especially when there were a number of judgment-debtors some mortgagors, some transferees from the mortgagors, all holding properties equally liable as security for the mortgage-debt. It is said that the judgment-debtors other than the minor judgment-debtor did not object to the order of the 24th March, 1922. There is nothing to indicate in the order sheet that this order was passed in their presence. There is no signature of theirs or their pleader''s in the order sheet.

We, therefore, are of opinion that the order of the Subordinate Judge of the 24th March, 1922, was irregular and inequitable, and the sale conducted under that order was, therefore, irregular. This irregularity in the conduct of the sale resulted in substantial injury to the judgment-debtors.

The question now is what order would be equitable in the present case. We find that the properties Nos. 2 and 3 and Bhaur have not been sold, whereas they should have been sold before mouza Kharagpur and properties Nos. 5 and 6 were sold. The sales of Kharagpur and of properties Nos. 5 and 6 have, therefore, been irregular and have caused material injury to the judgment-debtors. These sales are, therefore, set aside. Properties Nos. 2 to 6 will now be advertised for sale after fresh sale proclamation and they will he sold in that order. The sale of property No. 1 need not be set aside. The proceeds of the sale of that property will be applied towards the claim under the decree.

The result is that the appeal is partially decreed. As the sales of all the villages, except that of No. 1, have been set aside, the appellants have largely succeeded and are entitled to the costs of this Court as well as of the lower Court.

Foster, J.

I agree.